On Hiring/Criminal Records Guidance
(Revised Oct. 2012)
REENTRY
MYTH BUSTER!
A Product of the Federal Interagency Reentry Council
MYTH: People with criminal records are automatically barred from
all employment.
FACT: An arrest or conviction record does NOT automatically bar
individuals from all employment
On April 25, 2012, the U.S. Equal Employment Opportunity
Commission issued its Enforcement Guidance on the Consideration
of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42
U.S.C. § 2000e. The Guidance updates, consolidates, and
supersedes the Commission’s 1987 and 1990 policy statements on
this issue, as well as the relevant discussion in the EEOC’s 2006
Race and Color Discrimination Compliance Manual Chapter. These
rules apply to all employers that have 15 or more employees,
including private sector employers, the federal government, and
federal contractors. Below are answers to common questions
about the Guidance.
1) Does this Guidance prohibit employers from obtaining and
using criminal background reports about job applicants or
employees? No, the Guidance does not prohibit employers from
obtaining or using arrest or conviction records to make
employment decisions. The EEOC simply seeks to ensure that such
information is not used in a discriminatory way.
2) How could an employer use criminal history information in a
discriminatory way? Two ways -- First, Title VII prohibits disparate
treatment discrimination. Employers should not treat job
applicants or employees with the same criminal records differently
because of their race, national origin, or another protected
characteristic (disparate treatment discrimination). Second, Title
VII prohibits disparate impact discrimination. Employers should
not use a policy or practice that excludes people with certain
criminal records if the policy or practice significantly disadvantages
individuals of a particular race, national origin, or another
protected characteristic, and does not accurately predict who will
be a responsible, reliable, or safe employee. In legal terms, it is not
“job related and consistent with business necessity.”
3) How would an employer prove “job related and consistent
with business necessity”? Is it burdensome? Proving that a
criminal record exclusion is “job related and consistent with
business necessity” is not burdensome. The employer can prove
this if it (1) considers at least the nature of the crime, time since
the criminal conduct occurred, and the nature of the job in
question, and (2) gives an individual who may be excluded by the
screen an opportunity to show why he or she should not be
excluded.
4) Why should an arrest record be treated differently than a
conviction record?
An arrest record does not establish that a person engaged in
criminal conduct. Arrest records may also be inaccurate (e.g.,
mistakenly identify the arrestee) or incomplete (e.g., do not state
whether charges were filed or dismissed against the arrestee).
Thus, an arrest record alone should not be used by an employer to
take an adverse employment action. But, an arrest may trigger an
inquiry into whether the conduct underlying the arrest justifies an
adverse employment action.
For More Information:
EEOC Enforcement Guidance on the Consideration of Arrest and
Conviction Records in Employment Decisions Under Title VII:
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
EEOC Questions and Answers About the EEOC’s Enforcement
Guidance on the Consideration of Arrest and Conviction Records in
Employment Decisions Under Title VII:
http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
What is a REENTRY MYTH BUSTER?
This Myth Buster is one in a series of fact sheets intended to clarify existing
federal policies that affect formerly incarcerated individuals and their families. Each year, more than 700,000 individuals are released from
state and federal prisons. Another 9 million cycle through local jails. When reentry fails, the social and economic costs are high -- more
crime, more victims, more family distress, and more pressure on already-strained state and municipal budgets.
Because reentry intersects with health and housing, education and employment, family, faith, and community well-being, many federal
agencies are focusing on initiatives for the reentry population. Under the auspices of the Cabinet-level interagency Reentry Council, federal
agencies are working together to enhance community safety and well-being, assist those returning from prison and jail in becoming
productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration.
For more information about the Reentry Council, go to: www.nationalreentryresourcecenter.org/reentry-council